SCOPE AND ACCESS

WORKING GROUP ON SCOPE AND ACCESS: When the Working Group on
Scope and Access convened on Tuesday delegates had before them: the Third
Negotiating Draft (3ND) of the Revision of the International Undertaking on Plant
Genetic Resources; the Report of the Chair of the Eleventh Session of the Working Group
of the CGRFA (WG-11 Report contained in CGRFA-EX3/96/3), including an appendix
containing submissions by the US, France and Brazil; an informal paper presented by the
European Community and its member States; an information paper by Canada, Benefits
of the Use of Genetic Resources in Agriculture (CGRFA-EX3/96/LIM/3); and a study
by IPGRI on Options for Access to PGR and the Equitable Sharing of Benefits Arising
from their Use (CGRFA-EX3/96/LIM/2).

Although the Chair noted general agreement for his proposal, consistent with
previous CGRFA decisions on this matter  to use 3ND as a starting point for
discussions on scope (Article 3 of the IU) and access (Article 11 of the IU)  delegates
deliberated the order in which to address these issues. The US proposed starting with a
specific rather than general consideration of scope by addressing the scope of the IUs
access provisions in Article 11. In so doing, delegates could determine whether the IU
should seek to cover all situations in which access to PGRFA is sought (as highlighted in
the EU paper) or only a sub-set of situations, such as those in which there is a global
interest in open access rather than on mutually agreed terms (MAT). This would allow for
consideration of a broad access regime or a narrower one.

The EU called for a clear division of work between scope and access, and proposed
starting with the scope provisions of the IU. MALAYSIA expressed its preference for
commencing with scope, noting that IPGRIs study set out a way to explore the definition
of scope, which could then be incorporated into legal language. BRAZIL expressed
support for the US proposal to start with the scope of access provisions in Article 11, on
the basis that it would allow delegates to identify what type of resources they were
prepared to agree on. Reminded by the EU that it represented 15 member States, the
Chair stated that the WG would first consider scope.

BRAZIL stated that it could be more flexible in its consideration of scope if access was
addressed first. The Chair asked whether delegates might want to reconsider their
decision in light of a conclusion in the WG-11 Report to the effect that in order to define
scope, a number of other issues, including access, would need to be decided first.

GERMANY explained that the EU distinguished between two different scopes: one
regarding the overall IU (encompassing a framework for activities such as conservation
and sustainable use), which the EU wishes to be wide; the other regarding arrangements
for access. Arguing that it would be easier to agree on the former scope, GERMANY
stated that the latter should be discussed later. The US responded that for the EUs
proposal to have the desired effect, one need not have a general scope article. Indeed, the
US argued that general scope articles often raised legal questions regarding the coverage
of operative provisions of agreements, and that the norm was to apply different degrees of
scope to different provisions.

Asserting that the activities under the different provisions of the IU are interlinked and
that their scopes should not differ, CANADA deplored a retreat to previous positions
given that the WG-11 discussions had been so fruitful. Emphasizing the urgency of
moving forward, CANADA suggested first discussing scope as it applied to Article 11,
with both the expectation that the scope of that article will likely apply to all other IU
provisions and the understanding that other delegations may have differing views. The
EU later agreed to first discuss access without prejudice to scope. In an attempt to move
discussion forward on access arrangements, NEW ZEALAND stated that the objectives
of the agreement could best be promoted through a network of participating institutions,
based on mutually agreed terms, and recorded in appropriate contracts.

BRAZIL asserted that the first question should be whether the IU should address access
to all PGRFA or only focus on a limited group for which there is global interest in
maintaining unrestricted or facilitated access. Noting that the former approach has
previously resulted in deadlock because not all types of PGRFA are seen by all countries
as requiring the same type of access and benefit-sharing, BRAZIL underscored the
achievability of an agreement, on mutually agreed terms, on access and benefit-sharing
for a list of PGRFA that are important to world food security. CANADA called for a
more ambitious agreement and challenged delegates to outline their rationale for wishing
to exclude specific crops from the IU. The US stated that a list should not apply to areas
where is agreement on unrestricted access, but should be confined to germplasm held in
active collections of international centres and national genebanks when it is acquired
prior to the entry into force of the CBD or acquired post-CBD but pre-revised IU, for
which no conditions have been specified. ETHIOPIA, supported by MALAYSIA and the
EU, stated that the IU should encompass access to all PGRFA because any list might
restrict the future expansion of human food needs. COLOMBIA asserted that access to
PGRFA would need to be accompanied by access to corresponding technology and
legally-protected material, as addressed in the CBD. Cautioning against attempts to
renegotiate the basic principles underlying CBD Article 15 (access to genetic resources),
MALAYSIA stated its willingness to discuss pre-CBD collections.

CANADA identified two types of scope: biological scope (e.g., covered crops) for which
delegates had proposed either a limited list or no limitations unless justified on the basis
of objection to other crops being included); and temporal scope (e.g., pre- or post-CBD).
On this basis, CANADA suggested that delegates focus on language in Article 3 but in
application to Article 11. In response to NORWAYs objection to a restrictive list,
BRAZIL explained that its criteria for inclusion in the list  world food security and
interdependence  justified clear multilateral terms of access and benefit-sharing.

Recalling CANADAs challenge to countries to outline any objections to specific crops,
the UK noted that COP-3 would not have called for the CGRFA to reach a speedy
conclusion to revising the IU if Parties had deemed the issues to have been adequately
addressed by the CBD.

In response to GERMANYs statement that food security was achieved mainly in the
farmers field, BRAZIL noted that international agreements do not preclude countries
or regions from negotiating agreements to ensure access to promote the sustainable use of
regionally or locally important crops. He hoped this concern would be converted into
financing the GPAs chapter on under-utilized crops.

Noting that human consumption is not based solely on PGR, FRANCE stated the IU
should be as broad as possible, proposing that every country identify which material
would be subject to free and unrestricted access. He further stated a proliferation of
access regimes, through the creation of categories at local, national and regional and
international levels, would not facilitate access in accordance with CBD Article 15.2.

The US cited the UN Convention on the Law of the Sea (UNCLOS) as a legal precedent
for a regime that allows for the amendment of lists over time in accordance with scientific
change.

On behalf of the African Group, TANZANIA stated that access should be open to all
PGRFA, but would not automatically be free and that rules of access would need to be
negotiated. COLOMBIA stated that ease of access and food security should not
undermine the CBDs benefit-sharing provisions.

CANADA underscored the need to come to a multilateral agreement that will facilitate
access for the broadest scope of crops under the terms of the CBD and in respect of
national laws on property. In response to CANADAs query as to whether Brazil might
be willing to consider a longer list initially (given that delegations might have different
ideas as to which crops might meet the two criteria), BRAZIL responded that they are
open to suggestions.

ARGENTINA stated that Resolution 3 of the Nairobi Final Act, which called for the
harmonization of the IU in line with the CBD, underscored the promotion of sustainable
agriculture, not food security. AUSTRALIA stated that although it could appreciate the
apparent logistical simplicity of lists, the exclusion of pre-CBD ex situ collections
would create a highly ambiguous situation, and called for the scope to be all-
embracing. The US proposed adding specificity to discussions on access provisions, by
asking if there be one set of rules or different sets of rules for different sets of PGRFA.
GERMANY stated that the EU paper provides for a broad, flexible and multilateral
system within which institutions and countries would designate all the PGR in the
collections, subject to exceptions. In response to BRAZILs query as to whether this
represented the final EU proposal that appeared to be more of a compilation rather than a
coordination of positions, FRANCE responded that it was not yet definitive but rather an
informal paper designed to advance discussions.

On behalf of developing countries of Asia, MALAYSIA stated that if such a list were
agreed, it would be necessary to discuss conditions to facilitate multilateral access to
PGR necessary for food security. TANZANIA concurred, noting that it would only be
possible for Article 15.2 to truly facilitate multilateral access if national sovereignty is
respected. Noting that the CBDs recognition of sovereignty over natural resources does
not grant property rights over genetic resources, CANADA stated that the UN system
allowed for national governments to exercise sovereignty while entering into multilateral
agreements. In response to a similar contention by the US that agreement on multilateral
rules on access could only build on Article 15s provisions regarding mutually agreed
terms, MALAYSIA maintained that the terms of access under a multilateral agreement
would need to implement Article 15. Expressing concern that terminology such as open
and unrestricted could be imposed on nations in such a way as to hamper national
legislation, TANZANIA stated that the African Group wanted to negotiate the terms of
access under a multilateral agreement according to CBD Article 15.

ANGOLA, on behalf of the African Group, and MALAYSIA, on behalf of the
developing countries of Asia, each tabled text that builds upon a pre-existing proposal for
new wording in Article 3.1 of the 3ND. While the African proposal underscores species
of economic and social importance having actual or potential value, the Asian proposal
underscores agricultural crops of economic and social importance and having great
interdependence among countries. Both proposals state that access to PGRFA shall be
subject<W0> to national sovereignty and legislation, and linked with Farmers Rights,
technology transfer and benefit-sharing. JAPAN objected to including these issues in
articles on scope, noting that they should be addressed in an article on objectives. Noting
that it builds upon text from the CBD, CUBA supported the text proposed by ANGOLA,
and requested that it be considered as a compromise. CANADA proposed that
reformulation of Article 3.1, which makes links with elements of the IU not discussed by
the CGRFA since November 1994, be postponed until delegates had completed
consideration of Article 11.

At the beginning of the second session of the Working Group on Scope and Access, those
countries who made submissions to the WG-11 Report outlined their proposals. Noting
that the central question regarding access is whether the IU should seek to establish a
comprehensive set of rules or whether to narrow the IU provisions on access to those
genetic resources for which there is global interest in maintaining unrestricted access, the
US stated its support for the latter option. In response to MALAYSIAs call for a clear
understanding of the term unrestricted access, the US explained that it meant without
conditions, but should be applied in only in specific circumstances. CANADA,
MALAYSIA and the US deliberated whether the patenting of a gene sequence from an
International Agricultural Research Centre or the inclusion of a patented gene in
accessions in national or international collections would affect the availability of the
germplasm from which it was derived. The US expressed concern that a focus on the
most difficult scenarios would ignore the significant benefits from open access to the
genetic resources of major food crops. ETHIOPIA noted a consensus among countries on
the desire for access, but also on the need for compromise so as to ensure fair terms of
access and benefit-sharing for all owners and users.

The UK expressed concern that the discussion on IPRs was getting into areas beyond the
competence of the CGRFA, noting the COP-3 decision on access, which requests the
CGRFA to cooperate with the WTO through its Committee on Trade and Environment in
exploring the linkages between CBD Article 15 and relevant articles of the WTO
agreement on Trade-Related Intellectual Property (TRIPs).

Citing a document regarding access issues for consideration in Stage II of the revision of
the IU (CGPR/6/95/8 Supp), which notes that the CBD provides for the right of access by
other Parties subject to prior informed consent (PIC) and mutually agreed terms,
ANGOLA asked whether unrestricted meant free. The US maintained that the
important point was that any benefits gained from restricting access to genetic resources
that are widely held all over the world, far beyond their centres of origin, are outweighed
by the benefits to potential users of freely available material.The US added that
addressing certain cases in which global interest is such that access can be mutually
agreed is not inconsistent with the CBD but rather builds upon it. COLOMBIA stated
that in several Commission background papers, unrestricted was defined as permanently
available, but noted that such access required several conditions that are linked to
benefit-sharing. CANADA added that the 3ND emphasizes that access shall be
unrestricted for research, breeding and educational purposes but does not refer to
commercial purposes. MALAYSIA complimented Canada for actually outlining some of
the conditions for access and noted that conditions could also be discussed in line with
CBD Article 15.2. Noting that the distinction made by Canada is inspired by patents and
sui generis regimes, COLOMBIA stated another sine qua non for access,
often required by access legislation, is access to information pertinent to the handling and
use of PGR and participation by the country of origin in research on these genetic
resources.

FRANCE explained that although protected varieties could not be sold directly, they
could be used for research and breeding purposes, even privately, and this could be the
subject of unrestricted access. Stating that there is no reason to have a harsher access
regime for genetic resources than for PGR, FRANCE noted that although one cannot
claim rights on genetic resources, it is possible to claim them on the results of research
and then go on commercialize them. COLOMBIA asserted that the current strengthening
of intellectual property regimes can run counter to the establishment of easy access. The
US noted that it would be closer to the CGRFAs area of expertise if it posed the same
questions from a different angle. Assuming unrestricted meant not subject to
conditions, the Commission could discuss categories of germplasm for which access is
sought and the purposes for doing so.

FRIENDS OF THE CHAIR CONTACT GROUP: At the end of the second
session, Chair Bolivar called for the creation of a small contact group of the Friends of
the Chair (FOC) to be comprised of Brazil, Colombia, Angola, Ethiopia, Tanzania,
Malaysia, Japan, Canada, the US, Poland and an EC representative. The FOC would meet
in order to specify conclusions in light of the discussions in the Working Group on Scope
and Access. The FOC, as initially constituted, met for three sessions under the
chairmanship of Dr. Bryan Harvey (Canada), who presented the first Report of the
Friends of the Chairs Contact Group (CGRFA-EX3/96/WGSA/1) to plenary on
Thursday. The report outlined a list of options to be discussed in order to make progress
in developing consensus text and is organized according the following questions:

<$TSpInterLn=1383;SpInterPar=135>What would the objectives of/justifications for facilitating access through a multilateral agreement?

<$TSpInterLn=1383;SpInterPar=135>To what genetic resources, in which locations, would such facilitated access apply? and

<$TSpInterLn=1383;SpInterPar=135>How would access be facilitated?

The report also noted that several submissions to the FOC, including those made by the
African Group and Australia, as well as those made to WG-11 by the EU, the US, France
and Brazil, be added to the 3ND.

PLENARY: The International Plant Genetic Resources Institute (IPGRI)
summarized the major findings of Options for Access to PGR and the Equitable Sharing
of Benefits Arising from their Use (CGRFA-EX3/96/LIM/2), a study commissioned by
CGRFA on the feasibility of possible systems for the exchange of PGRFA as well as the
transaction costs likely to be incurred in the various system options. The study proposes
that a mixed multilateral/ bilateral option may be appropriate in certain circumstances, for
example to promote benefit-sharing in the event of commercialization. In assessing the
web of different systems, the study notes that a current example of a multilateral
system is the Consultative Group on International Agricultural Research (CGIAR). The
study suggests that in the absence of agreement on a multilateral system, countries will
work towards some form of multilateral exchange (e.g., regional cooperation or
networks) due to the transaction costs of operating bilaterally.

Several delegations expressed appreciation for IPGRIs presentation, noting that it
provided both food for thought, and a sounding board for either clarifying or articulating
their own positions. In the ensuing discussion, the EU stated that the IPGRI had clarified
scope in distinguishing between PGR for food and agriculture and PGR
for pharmaceuticals. BRAZIL noted that the presentation had reinforced its understanding
that genetic resources are subject to various forms of collaboration from bilateral to
multilateral. CANADA highlighted the accommodation of bilateral arrangements within
a global exchange system, and suggested that IPGRI consider the transaction costs of the
various proposals on prior informed consent. MEXICO recommended that IPGRI provide
a more precise description of materials held in International Centres in order to ensure
their availability to humankind. COLOMBIA explained that the current networks in Latin
America are ill-suited to a multilateral agreement, and called for new systems and a study
on the technical, legal and economic implications of exchanges between public
authorities and the private sector. The US stated that the international community has an
interest in making existing networks work, and that it is essential to keep costs down and
rules simple in devising any multilateral system.

The International Association of Plant Breeders for the Protection of Plant Varieties
(ASSINSEL) underscored three key issues in the implementation of both the IU and the
CBD: maintenance of and access to PGR; use of effective technologies; and protection of
intellectual property. He explained that industrys need for high, short-term returns on
investment meant that the private sector could not ensure adequate long-term
maintenance of PGR. He noted that industry recognized that free access did not
necessarily mean cost-free access.

GHANA underscored that genebanks continue to degenerate due to years of fruitless
negotiations and the absence of networks in West and Central Africa. SWEDEN was
encouraged by ASSINSELs concern regarding genetic erosion. FRANCE noted the
goodwill and willingness of plant breeders to participate in national conservation
strategies on PGR.

ETHIOPIA stated that countries might better evaluate the advantages and disadvantages
of various multilateral agreements if these were presented according to a package of
scenarios on scope and access: wide scope and unrestricted access; wide scope and
restricted access; limited scope and unrestricted access; or limited scope and restricted
access. The US stated that a matrix presenting a variety of possibilities on scope and
access would clarify some of the benefits of open and unrestricted access and would
allow for move forward, starting with international collections and then broadening
from this small area. Noting Ethiopias proposal to examine the costs and benefits of
various options, FRANCE suggested developing a programme of work that would put
future discussion on a new and better footing. Recognizing that the atmosphere of the
meeting had improved, delegates deliberated how to proceed and eventually agreed to
reconvene the FOC contact group, which would be extended to accommodate two
representatives from each region, also drawing on the original participants to ensure
continuity.

On Friday morning, the FOC Chair presented the results of this second round of
discussions in report (CGRFA-EX3/96/WGSA/1/ Add.1) which, allowing for numerous
amendments proposed by delegates during plenary discussions, served as the basis for the
Commissions decision on Scope and Access.

The report noted that the although the FOC used Ethiopias proposal for developing a
matrix on scope and access as a basis for its deliberations, even a multi-dimensional
matrix could not cover all important aspects, given the complexity of the issues involved.
Therefore, the Commission recommended that IPGRI, in conjunction with the FAO
Secretariat, carry out a study in two steps: a characterization of options on scope and
access (to be completed by 31 January 1997 and circulated to the Commission for
comments); and a notional assessment of the pros and cons of each option as well as
of their viability.The study will draw on the issues raised on scope and access in
the first report of the FOC (CGRFA-EX3/96/WGSA/1) as well as regional and country
papers submitted to WGSA and WG-11. It was also suggested that the transaction costs
of prior informed consent arrangements should also be studied. The final study will need
to be completed in time to be of use to delegates in their preparations for CGRFA-7 in
May 1997.